Court: Louisiana Court of Appeal; December 6, 2011; Louisiana; State Appellate Court
CeCe Sloan was injured in a 2007 motor vehicle accident caused by an underinsured driver, resulting in significant physical and emotional damages. The driver, Renee Mouton, admitted liability, and Sloan settled with her insurer for $10,000, in addition to receiving $5,000 in medical pay and $15,000 from her uninsured/underinsured motorist carrier, Shelter Mutual Insurance Company. Sloan then pursued further damages from Shelter at trial, where the jury awarded her $120,450, broken down into various categories of past and future medical expenses, lost wages, and compensation for pain and suffering. Following the jury verdict, Sloan requested an additur, which the trial court granted, increasing her total damages to $190,450 by adjusting awards for pain and suffering and adding compensation for loss of enjoyment of life. Shelter Mutual appealed several aspects of the jury's decision and the trial court's additur ruling, including the increase of damages, the acceptance of the additur, causation of injuries, and the jury's awards for future medical expenses and lost wages. The appellate court affirmed the trial court’s judgment with partial amendments.
Shelter appealed the trial court's judgment, citing three errors: the jury’s causation finding, the judge’s ruling on waiver for a new trial, and the $70,000 additur. Ms. Sloan cross-appealed, challenging the judge's failure to exclude testimony from ex parte communications, the jury’s inadequate awards for lost wages and future medical expenses, and the insufficient amount for future medical expenses. The appellate court amended the future medical expenses award from $1,600 to $10,000 but affirmed all other awards.
The standard of review requires that an appellate court only overturn a trial court’s findings if there is no reasonable factual basis for them and they are clearly wrong. Shelter contested the jury’s determination that Ms. Sloan's injuries were caused by a motor vehicle accident, citing conflicting evidence. However, three physicians provided testimony linking her shoulder and hand injuries to the accident, countering Shelter's claims. Specifically, Dr. Dugas, Ms. Sloan's internist, testified that her injuries were related to the accident, despite his initial focus on other health concerns. He documented ongoing pain and referred Ms. Sloan to an orthopedic surgeon, corroborating the causal connection between her injuries and the accident.
Dr. Vizzy testified that Ms. Sloan sustained shoulder and thumb injuries from a motor vehicle accident where she was struck from both the front and back. He identified her shoulder issues as impingement bursitis and rotator cuff impingement, supported by MRI findings. By late January 2008, her shoulder had improved to 70%, though pain persisted. For her hands, Dr. Vizzy noted tenderness at the carpal metacarpal (CMC) joints with subluxation upon palpation. X-rays from late 2007 indicated joint laxity but no degenerative disease, although he warned that this laxity could lead to arthritis. Following ineffective physical therapy and hand braces, he administered steroid injections and discussed potential surgery in March 2008. By August 2008, Ms. Sloan was developing arthritis in her CMC joints due to inflammation from joint laxity.
Dr. Vizzy linked her hand injuries to the accident, stating that the mechanism was consistent with gripping the steering wheel during the crash. He referred her to hand specialist Dr. Robert Morrow, who, 11 months later, found degenerative changes in Ms. Sloan's hands and opined that her thumb problems were likely not related to the accident, though he recommended surgery. An orthopedic surgeon, Dr. Gary Porubsky, examined Ms. Sloan and attributed her thumb issues to aging, suggesting they were not accident-related. Dr. Darrell Henderson, a hand surgeon, later performed reconstructive surgery on both hands in 2010 and confirmed that the injuries were indeed caused by the trauma from the accident, specifically due to the force applied when Ms. Sloan was gripping the steering wheel during the crash.
Dr. Henderson testified that during the surgical reconstruction of Ms. Sloan's ligament from the first to the second metacarpal, he discovered the ligament was "torn apart very cleanly" and successfully reattached it. He differentiated between subluxation caused by arthritis and that caused by trauma, noting that of five similar surgeries he performed in December 2010, only one involved arthritis. He confirmed that Ms. Sloan’s joint was otherwise pristine except for post-accident bone spurs. Expert testimonies established a reasonable basis for the jury to conclude that the accident was responsible for Ms. Sloan’s shoulder and hand injuries.
Following the trial, Shelter contested the trial judge's decision to increase Ms. Sloan’s general damages by $70,000, but the court affirmed the additur. The jury initially awarded only $60,000 for comprehensive damages, which was deemed excessively low given the extent of Ms. Sloan’s injuries. The trial judge found specific categories of damages to be inadequate: increasing physical pain and suffering to $50,000, mental pain and suffering to $35,000, and awarding $15,000 for loss of enjoyment of life.
Ms. Sloan experienced significant physical injuries, including blunt force trauma, deep tissue bruising, and severe soft tissue damage, leading to extensive pain, nightmares, anxiety, and ultimately reconstructive surgeries on her hands. Her prior occupations required extensive use of her hands, underscoring the impact of her injuries on her quality of life and ability to work.
Ms. Sloan underwent four years of treatment, including extensive therapy and two hand surgeries, resulting in a permanent impairment of approximately twenty-five percent in both hands. The jury awarded her $30,000 for permanent disability, $20,000 for past and future physical pain and suffering, and $10,000 for past and future mental suffering. The trial judge found an additur of $30,000 for physical pain and suffering appropriate, referencing similar cases that supported this amount. Additionally, a $15,000 additur for loss of enjoyment of life was justified, as Ms. Sloan's impairments severely limited her ability to engage in activities she previously enjoyed, such as cooking and gardening. The court noted that loss of enjoyment of life is distinct from pain and suffering and can warrant separate compensation if sufficiently proven. Furthermore, the judge's decision to increase the jury’s award for mental pain and suffering from $10,000 to $25,000 was upheld, supported by evidence of Ms. Sloan's emotional distress, including anxiety and depression, treated with medication. This decision aligned with precedents that recognized significant emotional suffering as valid grounds for increased damages.
In Taylor v. Progressive Sec. Ins. Co., the Louisiana appellate court affirmed a $125,000 award for mental anguish to an accident victim and upheld a previous decision awarding $52,000 for mental anxiety from an incident involving a deputy. Shelter contended that the trial judge erred in denying its request for a new trial as an alternative to an additur, which Shelter's counsel had conditionally consented to, stating, "I’m going to consent to the additur under protest and we will waive our right to a new trial.” The court found no error as Shelter had effectively waived its right to a new trial. Shelter argued that its consent should have been documented in writing, but the court noted that Louisiana Code of Civil Procedure Article 1814 does not require written consent for an additur. The statute allows the trial court to grant an additur or remittitur to avoid unnecessary new trials when the issue of quantum is separable. After a three-day trial, the jury’s verdict prompted a motion for additur, leading to a hearing where the trial judge decided to increase the jury's awards. Shelter did not object further during the hearing and later expressed its objections in correspondence regarding the proposed judgment, ultimately stating at a subsequent hearing that it waived its consent to the additur while preserving its right to appeal. The court concluded that no written consent was necessary.
In *Accardo v. Cenac*, the appellate court addressed the absence of evidence regarding the official acceptance or rejection of a trial court’s additur by the defendant, who drafted the judgment including the additur. The court inferred the defendant's willingness to accept the additur to avoid a new trial. According to Louisiana Civil Code Procedure Article 2083, either party can appeal a judgment modified by additur, even if they consented to it, which preserves their right to appeal under protest. The court affirmed the trial court's authority in granting the additur and denying a new trial request, allowing both parties to appeal. In *Cox v. Julian*, the court similarly found tacit agreement to additur due to the defendant's lack of objection and prior payment of the judgment. Conversely, in *Corbello v. Iowa Production*, the absence of records showing plaintiffs were offered a choice for a new trial led to a conclusion that the trial court erred in granting remittitur. In the current case, the trial court's failure to obtain explicit written consent from Shelter was not deemed reversible error, as Shelter had multiple opportunities to opt for a new trial but did not. Additionally, Shelter's post-verdict actions indicated an acceptance of the additur. Ms. Sloan raised errors regarding alleged ex parte communications between Shelter and physicians, which violated Louisiana evidentiary and civil procedure laws protecting the confidentiality of communications with medical providers outside of proper discovery contexts.
The trial court's decision to allow the testimony of Dr. Dugas and Dr. Morrow, despite violations of procedural rules, will not be reversed as it would not have changed the trial's outcome. Shelter’s counsel met with Dr. Dugas prior to his deposition to translate notes, which, unlike in Coutee v. Global Marine Drilling Co., did not significantly affect the trial since Ms. Sloan’s counsel had opportunity to question him about this meeting, and Dr. Dugas ultimately supported the causation of Ms. Sloan’s injuries related to her accident. In contrast, the communications with Dr. Morrow posed more serious concerns, as they involved requests for a conference and discussions about his testimony in violation of La. Code Civ. P. art. 1465.1. Despite these issues, the trial court allowed Ms. Sloan’s counsel to inquire about the interactions, ultimately deeming them not improper. However, the last-minute nature of the consultation surprised Ms. Sloan’s attorney and pressured the court into a quick decision on the matter. Still, the jury favored the testimonies of Dr. Dugas and others, concluding that Ms. Sloan’s injuries were causally related to her accident, indicating that even if Dr. Morrow's testimony had been excluded, the verdict would likely remain unchanged. The communications with Dr. Morrow were found to contravene procedural rules, highlighting the trial court's challenge in managing these interactions effectively.
Violations of La.Code Civ. P. art. 1465.1 do not require a showing of prejudice, but since Dr. Morrow's testimony did not affect the jury's verdict, no reversal is warranted. Regarding future medical expenses, Ms. Sloan argued the jury's award of $1,600.00 was manifestly erroneous and sought an increase to $10,000.00. Testimony from Dr. Henderson indicated that Ms. Sloan would likely require additional surgeries in approximately ten years, each costing around $11,000.00, along with $5,000.00 to $15,000.00 for physical therapy lasting six to nine months. The jury's award was deemed an abuse of discretion, leading to an amendment that increased the future medical expenses to $10,000.00.
In terms of past wage loss and loss of future earning capacity, Ms. Sloan contended the jury's award of $11,000.00 for past lost wages should be increased to $40,000.00. However, the court disagreed, emphasizing that claims for lost wages must be proven with reasonable certainty. At the time of the accident, Ms. Sloan was a part-time stress counselor earning approximately $2,000.00 per month in 2006 and $20.00 per hour in 2007. Her position was eliminated in 2007 as part of a grant phase-out. Prior to her counseling role, she had not filed tax returns and was a dependent on her partner's tax returns, which complicated the proof of lost wages.
By July 2007, after an accident in April, Ms. Sloan was involved in supervising cabin construction in Arkansas. The jury determined that her lost earnings from the accident were speculative, except for the wages she could have earned at Volunteers of America from April until her counseling position ended in October 2007. Ms. Sloan argued that the jury erred by not awarding damages for her future earning capacity and sought $12,000 for six months of post-trial therapy and disability to her left hand. The court disagreed, stating that in assessing future wage loss, factors such as the plaintiff's pre-injury condition, work history, potential earnings, and likelihood of continued employment must be considered. Despite some impairment in her hands, medical testimony indicated she was capable of supervising work and performing healing touch therapy. However, there was no income proof from her past work in this area, and her plans for a reflexology license were deemed speculative. Furthermore, her ability to supervise property development post-accident suggested she was not hindered from earning income. The court amended the trial judgment to increase future medical expenses from $1,600 to $10,000 but affirmed all other aspects of the judgment. Costs of the appeal were assessed to the defendant. The judgment regarding a choice between additur and a new trial was clarified to be an interlocutory ruling, not a final judgment. Additionally, Louisiana's privilege rules regarding confidential medical communications were outlined, including exceptions related to personal injury claims and potential sanctions for attorney violations.
